DeJong v. Stern, 63281
| Decision Date | 10 June 1982 |
| Docket Number | No. 63281,63281 |
| Citation | 292 S.E.2d 115,162 Ga.App. 529 |
| Parties | DeJONG et al. v. STERN et al. |
| Court | Georgia Court of Appeals |
Roland B. Williams, Savannah, for appellants.
Ralph R. Lorberbaum, John B. Miller, Lamar W. Davis, Jr., Savannah, for appellees.
Appellee Peter K. Stern brought this action alleging breach of contract against appellants Eagle Marine, Inc. of Savannah; Eagle Marine, Inc. of Jacksonville; Eagle Marine, Inc. of Miami; and Norman N. DeJong, individually and as president of the foregoing corporations. 1 Appellants answered the complaint, denying the basic allegations therein. Appellants also filed a counterclaim against Stern and a third-party complaint against Stern's other employer, Hydro-Air Engineering--both actions alleging breach of contract and negligence on the part of Stern individually and as agent for Hydro-Air. This case was tried before a jury and following the close of evidence, the trial court directed a verdict in favor of Stern and Hydro-Air as to appellants' counterclaim and third-party action. The jury returned a verdict in favor of Stern on his action against appellants. Appellants bring this appeal following the trial court's denial of their motion for new trial.
At issue in this case was an oral contract entered into by Stern and DeJong whereby Stern was to sell marine supplies on behalf of Eagle Marine--Savannah in Georgia and South Carolina. Also, DeJong agreed to place orders for certain equipment with Stern for processing through Hydro-Air; at all times relevant to this case, Stern was a salaried employee of Hydro-Air Engineering. Stern brought this action to recover commissions which he alleged were due him for sales made pursuant to the oral contract. Appellants counterclaimed for damages, alleging that Stern had failed to perform under the terms of the oral contract and also alleging that Stern and Hydro-Air were negligent in their handling of an order for various marine pumps placed by Eagle Marine--Jacksonville.
1. Appellants' first enumeration cites as error the trial court's directing a verdict in favor of Stern and Hydro-Air on appellants' counterclaim and third-party action. As to these claims, appellants had the burden at trial of showing both the breach and the damage. See Refrigerated Transport Co. v. Heller Co., 129 Ga.App. 332, 199 S.E.2d 590 (1973). Since the evidence of record discloses a conflict as to whether Stern breached the terms of, or was negligent as to, his oral contract, the issue raised by this enumeration is proof of damages.
The only evidence cited by appellants as showing actual damages resulting from Stern's breach of contract is a "consultation and management fee" of $4,600.00 paid by Eagle Marine--Savannah to Eagle Marine--Jacksonville for services which had been provided by Leips. DeJong testified that this payment was made "[b]ecause ... it had ... become apparent that Mr. Stern wasn't doing his job and somebody had to do it." Although Leips testified that he was a salaried employee of Eagle Marine--Jacksonville, he also testified that he was "in charge" of all the Eagle Marine corporations to the extent he was directed by DeJong. "Actual damages" are those which show an "actual and real loss or injury." Black's Law Dictionary 467 (4th ed. 1968). In our view, the foregoing transfer of funds between corporations controlled by the same individual was not evidence of "actual damages."
As to their negligence claim, appellants alleged lost profits from Stern's and Hydro-Air's inattention and delay in processing an order for certain marine pumps. The order was placed by Eagle Marine--Jacksonville for an important client with whom DeJong hoped to re-establish business relations. DeJong testified that Eagle Marine--Jacksonville had made gross sales to this client in an amount between $280,000.00 and $320,000.00 in 1975; of this amount "somewhere between $20,000.00 and $30,000.00" was profit. DeJong offered no testimony as to the anticipated profits which were lost as a result of the alleged negligence.
Tendrift Realty Co. v. Hayes, 140 Ga.App. 896(1), 232 S.E.2d 169 (1977); see Radlo of Ga. v. Little, 129 Ga.App. 530(2), 199 S.E.2d 835 (1973). "Loss of anticipated profits which is completely conjectural is not recoverable." Hip Pocket, Inc. v. Levi Strauss & Co., 144 Ga.App. 792, 794, 242 S.E.2d 305 (1978).
Based on appellants' failure to present any evidence of actual damages in this case, the trial court did not err in...
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...it can be determined to a reasonable certainty that the defendants in fact realized such a gain. See generally DeJong v. Stern, 162 Ga.App. 529(1), 292 S.E.2d 115 (1982). "An allowance for damages cannot be based on guesswork. [Cits.] 'Loss of anticipated profits which is completely conject......
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